al-Marri and the Vexing Question of Indefinite Military Detention II (minus Mukasey)

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Gabor RonaHuman Rights First

Marty Lederman does a terrific job of laying out the al Marri landscape. Still, his measured praise of Judge Wilkinson’s opinion might contain more measure and less praise were it to give applicable international law its due.

Yes, it is praiseworthy that Judge Wilkinson looks to “traditional law of war principles” to determine the constitutional ambit of detention authority. But he gets it wrong because he misconstrues the law of war and neglects applicable international human rights law.

First, Judge Wilkinson makes no reference to the distinction in the international laws of war between detention powers in wars between states and detention powers in wars that are not between states. In wars between states, members of armed forces and civilians can be detained without reference to habeas-type review under the authority of the 3d and 4th Geneva Conventions, respectively. These detainees get certain rights: in the case of combatants, a hearing to determine entitlement to Prisoner of War status and in the case of civilians, bi-annual administrative review.

But in armed conflicts that are not between states, namely those covered by Common Article 3 of, and Additional Protocol II to, the Geneva Conventions, there is no explicit detention authority similar to what is detailed in the Conventions’ provisions for state-to-state armed conflict. This is no accident. The drafters presumed that in such conflicts, domestic law would govern. This makes sense because in state-to-state conflicts, combatants are exempt from the operation of domestic criminal law for their mere participation in hostilities (but not for war crimes). In other armed conflicts, however, fighters are not “combatants” but rather, criminals under domestic law, even if the conflict transcends national boundaries.

Judge Wilkinson’s “test” for who may be constitutionally detained as an “enemy combatant” confuses matters by using the term “combatant” to include unprivileged belligerents. A combatant is, by definition under the laws of war, a person privileged to participate in hostilities. Thus, the term “lawful combatant” is redundant and the term “unlawful combatant” is an oxymoron.

In this respect, Marty’s mention of the recent Israeli Supreme Court decision upholding the domestic “detention of enemy combatants” law is relevant. It shows that states can regulate the detention of persons that the laws of war consider to be “unprivileged belligerents.” But just as relevant, if not more so, is another recent Israeli Supreme Court decision rejecting the concept of “unlawful combatant” as a status under the laws of war.

Second, Judge Wilkinson’s test is under-inclusive, as it fails to account for the detention authority contained in the Geneva Conventions for state-to-state armed conflict. He opines that among other criteria, a Congressional declaration of war or authorization for the use of military force is required. However, the Conventions make clear that declarations are immaterial to the application of the laws of war. What is material is the fact of armed conflict. It is doubtful that, in the event of a U.S. attack on another country, the U.S. Constitution would be read to prohibit detention authorized by the Geneva Conventions, simply because Congress has not spoken. (Do I underestimate the strength of the War Powers Resolution?)

Third, Judge Wilkinson fails to acknowledge the role of international human rights law in the matter of detention powers. The International Covenant on Civil and Political Rights (ICCPR), to which the U.S. is a party, does not categorically prohibit administrative detention, but does prohibit arbitrary detention and provides for a mechanism, akin to habeas corpus, to remedy it.

Anytime one mentions the ICCPR in connection with U.S. terrorism detention policy, it is first necessary to dismiss two patently incorrect U.S. positions. The first is that human rights law has no bearing in armed conflict situations. This overbroad application of the concept of lex specialis is rejected by the overwhelming majority of international jurisprudence and scholars. The U.S. theory goes that since the laws of war are specialized laws applicable in wartime, the more general law of human rights does not apply. But the laws of war do not cover everything. They do not, for example, cover questions about the power to detain and the right to challenge detention in armed conflicts that are not state-to-state. (See first point, above). This is only the most relevant example of many that highlight the true meaning of the lex specialis doctrine. Lex specialis does not mean that when a specific legal framework applies, all other more general ones are irrelevant. It does mean that when a specific legal framework applies, its rules trump inconsistent rules of other applicable frameworks. The application of human rights law at all times, even in armed conflict, has been confirmed by the International Court of Justice ICJ), the Yugoslavia Tribunal (ICTY), the Human Rights Committee (HRC), the Inter-American Commission on Human Rights (IACHR) and numerous scholars. It is even referenced in law of war treaties. For example, Common Article 3 of the Geneva Conventions requires trials to be conducted by “a regularly constituted court, affording all the judicial guarantees which are recognized as indispensible by civilized peoples.” Where is the laundry list of such judicial guarantees to be found? In the ICCPR. Another example of reference to human rights law in a law-of-war treaty is found in the preamble of Additional Protocol II to the Geneva Conventions: “Recalling furthermore that international instruments relating to human rights offer a basic protection to the human person . . .”

The second patently incorrect position taken by the U.S. is that the ICCPR has no bearing on extraterritorial conduct. The United States asserts that Article 2(1) of the ICCPR, which obliges each State to respect and to ensure to all individuals “within its territory and subject to its jurisdiction” the rights recognized in the Covenant, was intended, according to the negotiating history of the Covenant, to have no application to the conduct of a State beyond its territory. The record of negotiations, held when U.S. presence in foreign territory was a major fact of life in the aftermath of WW II, tells a different story. It indicates that in describing the scope of application of the ICCPR, the United States was motivated to add the words “within its territory” to the words “subject to its jurisdiction” for a limited purpose: to prevent a state from becoming responsible for violations committed against persons over whom that state has nominal jurisdiction, such as its own citizens or persons in territory under its occupation, but where the violations are actually committed by another state. There was no indication of intent to shield a state from responsibility for its own conduct.

This position of the U.S. has also been rejected by the vast majority of authorities, including the ICJ, the HRC and the IACHR. The ICJ notes, in particular, the ambiguity of the subject language, namely the possibility of reading the word “and” as either conjunctive or disjunctive. Ambiguity raises the need for interpretation, which, in accordance with customary provisions of the Vienna Convention on the Law of Treaties, is to be done in light of a treaty’s “object and purpose.” The Preamble to the ICCPR speaks of the inherent dignity and equal and inalienable rights of “all members of the human family” and conditions under which “everyone may enjoy” their rights. (Emphasis added). It can hardly be claimed that it is within the object and purpose of the ICCPR for a state party to be permitted to operate with impunity for human rights so long as it does so beyond its own borders.

But before addressing what the ICCPR demands in connection with the prohibition of arbitrary detention, I would acknowledge its inapplicability to detention questions in state-to-state armed conflict, since that field is occupied by the Geneva Conventions. This would be a correct application of the lex specialis doctrine – see above.

For all other situations, be they in armed conflict or in peacetime, human rights law requires not only that a detainee be afforded a mechanism to challenge detention (procedural due process), but that the decision to detain be grounded in a properly circumscribed law (substantive due process?) That law can be a criminal law provision or an administrative detention provision. Some experts think that administrative detention can only be used as an alternative to criminal charge when conditions permitting derogation from the obligations of the ICCPR exist (a threat to the life of the nation, etc.) Even absent that restriction, administrative detention must be established in domestic law that affords procedural due process and is rationally related to a serious risk sought to be addressed.

The vast majority of ink that has been spilled on differences between the administration and the Supreme Court on “enemy combatants” concerns questions of process. So far, there has been little confrontation over the definition of who may be detained. Perhaps this is proper – the Court deciding no more than is necessary to resolve the controversy at hand.

In al Marri, we have, perhaps, come to the point where, if Certiorari is granted, the Supreme Court will confront the ultimate question of who may be detained. If it does so in a manner consistent with the international law framework that, by virtue of the Constitution, is “part of our law,” it will need to drill down quite a bit more deeply than did Judge Wilkinson. Hopefully, that exercise will result in the realization, first of all, that the battlefield/no battlefield distinction proposed by some as a measure of who may be subjected to military/administrative detention is both under-inclusive and over-inclusive, for the reasons mentioned above. A second hope is that the Court, while giving the administration its due in situations of state-to-state armed conflict, will, in other situations, draw the line in a manner that keeps faith with American constitutional traditions. Such faith would require a rejection of administrative detention in favor of criminal charge.

We at Human Rights First were gratified by Judge Motz’s reference in al Marri to our recently published study of the criminal justice system’s experience in over 100 international terrorism cases. That study, conducted by former prosecutors, found that federal prosecutors have at their disposal a broad selection of substantive law to cover preparatory as well as completed acts and conduct occurring abroad, that courts make use of an array of laws and procedures designed to protect national security information from disclosure, and that they can exercise the flexibility necessary to meet the challenges such cases present. The study concedes that criminal prosecution is not the single answer to terrorism. Intelligence gathering, financial controls, diplomacy and the use of military force all have their place. But when the question is how best to incapacitate and hold accountable those who threaten and commit terrorist acts, the answer is staring out at us from our own Constitution.

The power of the US military to detain prisoners or war is implied in Articles i and II of the Constitution and is not derived from the international law. Rather, the common law of war and the Geneva Conventions (GCs) simply regulate how prisoners of war are to be treated.

The contention that the law of war only permits prisoners of war to be taken in wars between nation states is contrary to history. The United States has waged many of wars against groups which did not constitute nation states as defined under international law and our military has always taken prisoners of war for the duration of those conflicts. There is nothing novel about our war with al Qaeda. Indeed, it resembles our early war against the Barbary Pirates.

The GC III, Art. 4, Sec. 2 recognizes that militias and partisan groups which are not nation states are also entitled to the privileges of POWs so long as they follow the laws of war.

Finally, under two of the numerous ratification reservations of the Senate, the ICCPR is not self executing (138 Cong. Rec. S4781-84 (1992)) and does not provide a cause of action in US courts. (S. Exec. Rep., No. 102-23 (1992)). Because Congress did not enact legislation applying Article 9 of the ICCPR to POWs and indeed forbade habeas corps review of combatant status hearings, the ICCPR has no legal effect on this question. Any contrary interpretations by various foreign organizations are irrelevant.

Finally, under two of the numerous ratification reservations of the Senate, the ICCPR is not self executing (138 Cong. Rec. S4781-84 (1992)) and does not provide a cause of action in US courts. (S. Exec. Rep., No. 102-23 (1992)). Because Congress did not enact legislation applying Article 9 of the ICCPR to POWs and indeed forbade habeas corps review of combatant status hearings, the ICCPR has no legal effect on this question. Any contrary interpretations by various foreign organizations are irrelevant.

Under the Charming Betsy principle, domestic laws should be construed in a manner consistent with the ICCPR unless there is a clear statement by Congress that the ICCPR should be overridden.

Further, much of what is contained in the ICCPR has also been long accepted as a matter of customary international law. Again, Congress can clearly authorize violations of customary international law, but if there is no clear statement of Congress, our laws should be construed so as not to violate our obligations under customary international law.

Congress made a clear statement that the ICCPR was only to be enforced as US law to the extent that Congress chose to do so by statute. Congress never applied the ICCPR to POW status determinations.

Congress' clearly stated in the MCA that the "Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense" conducted combatant status determinations.

Congress further clearly stated in the DTA and MCA that courts were not permitted to conduct habeas corpus reviews of these status hearings.

France, in Algeria in the 1960s, and Russia, in Afghanistan in the 1980's, fought non-state actors and both utilized military detention similar to the rules set out for conflicts between states. I realize that these are only two examples but these are possibly the two biggest Common Article 3 conflicts in the post 1949 era (aside from the current conflict) and both France and Russia are signatories to the conventions.

Is this state practice evidence of military detention authority in common article 3 conflicts apart from domestice criminal law (which undoubtedly overlaps)? Thoughts?

France, in Algeria in the 1960s, and Russia, in Afghanistan in the 1980's, fought non-state actors and both utilized military detention similar to the rules set out for conflicts betweeen states

As far as Afghanistan is concerned, it is worth remembering that the Soviets were invited in by Taraki - there is a translation of the report of the Politburo to the Central Committee on the CNN website:Soviet Report on Afghanistan

Since they were "invited in", the Soviets would in theory have operated under the domestic laws of the Democratic Republic of Afghanistan as military forces in aid of the civil authority - I say "in theory". I have no idea of the conditions in detention facilities, but I doubt they were any kind of holiday camp.

As for France in Algeria - where on earth did Dustin Greene get that idea ? France did nothing of the sort!

Until 1962, Algeria was not considered an independent state at all, nor a French colony, nor a protectorate like Morocco. Algeria was considered part of France - remember De Gaulle in Algeria in 1958 "De Dunkerque à Tamanrasset, une seule France"

Algeria was sporadically violent ever since the French invaded and annexed the territory in 1830. Repression by the French was always brutal. The last major uprising prior to the victorious independence struggle was on 8th May 1945 when some thosands of Algerians were massacred in Setif and Guelma. See this article in the English edition of the French Newspaper Le Monde Diplomatique Massacre in Ageria

The definitive insurrection by the FLN began in 1954, brought down the 4th Republic and ended with the Evian Agreements and the plebiscite in 1962 under which the Algerian people voted for independence.

At no time was the insurrection considered by the French as a war, but as a domestic insurgency. Insurgents were not given prisoner of war status but weregenerally guillotined after summary trials as common criminals, simply shot or dropped out of helicopters.

Torture was widely used by the military authorities -memorialised in the Pontecorvo film "La Bataille d'Alger" - considered too controversial to be shown in France for many years after the end of hostilities - but chosen by the US Department of Defense as part of the indoctrination of top US military officers going to Iraq - whether to encourage them to practise torture or to discourage them from so doing, I know not - but I have my suspicions.

The laws of war and the Geneva conventions played no part in the French treatment of the Algerian people during their independence struggle. You will find on this site public declarations by various participants on the French side admitting torture and summary executions La torture - Guerre d'Algerie 1954-62

Neither situation is analogous to the authority claimed by the Bush Administration.

Congress made a clear statement that the ICCPR was only to be enforced as US law to the extent that Congress chose to do so by statute. Congress never applied the ICCPR to POW status determinations.

Bart, that's not what a clear statement is, under 200 years of caselaw.

First, a non-self-executing declaration just means that nobody can sue or prosecute something directly under the treaty. It doesn't mean that the treaty is not part of US law. In other words, self-execution is an issue of remedy, not right. (For instance, a violation of ICCPR would still be a proper ground for diplomatic protest, and the US governemnt could not contend in response to that protest that it was not bound by the ICCPR.)

Second, a clear statement means a clear statement. "Notwithstanding any provision of international law to the contrary" or "Notwithstanding the provisions of the ICCPR" are nice ways to do it. In fact, you will find some clear statements relating to the Geneva Conventions in the Military Commissions Act. The point is that Congress has to explicitly reference the international law and indicate that it intends to disregard it. Otherwise, the act of Congress is subject to the Charming Betsy principle.

Again, there's 200 years of caselaw on this. You might like the law to be otherwise, but you need to accept that sometimes the law isn't what Bart DePalma thinks it should be.

Anytime one mentions the ICCPR in connection with U.S. terrorism detention policy, it is first necessary to dismiss two patently incorrect U.S. positions. The first is that human rights law has no bearing in armed conflict situations.

And for good reason: The potential for human rights violations may well be the greatest during armed conflict situations. Not to mention, there's hardly a percentage in encouraging "wars" as a means -- or and excuse -- for enabling the trampling of human rights. To provide such a perverse "incentive" would be downright foolish.

First, a non-self-executing declaration just means that nobody can sue or prosecute something directly under the treaty. It doesn't mean that the treaty is not part of US law. In other words, self-execution is an issue of remedy, not right. (For instance, a violation of ICCPR would still be a proper ground for diplomatic protest, and the US governemnt could not contend in response to that protest that it was not bound by the ICCPR.)

That is a distinction without a difference. One cannot have a right without a corresponding remedy.

A law is a rule which in enforced by a governing authority. Where there is no enforcement, there is no law.

The point is that Congress has to explicitly reference the international law and indicate that it intends to disregard it. Otherwise, the act of Congress is subject to the Charming Betsy principle.

What is stating that a treaty in unenforceable as law if not an expression of an intent to disregard it?

Again, there's 200 years of caselaw on this. You might like the law to be otherwise, but you need to accept that sometimes the law isn't what Bart DePalma thinks it should be.

Then you will have no trouble providing me just one case on point where:

1) The Senate ratified a treaty with the express reservations that the treaty was not self executing and did not create a cause of action in court;

2) Subsequently, the Congress enacted statutes contrary to one or more provisions in that treaty (like the DTA and MCA which barred the habeas corpus style hearing for POWs allegedly required by Article 9 of the ICCPR); and

3) A court held the treaty was still enforceable as law under the Charming Betsy principle.

On this blog we should also regard it as inevitable that on any thread, there will be one or more posts from Neocon Bart pontificating on subjects on which he knows little.

"The power of the US military to detain prisoners or war is implied in Articles i and II of the Constitution and is not derived from the international law."

I think there, our pet "loathsome spotted reptile" is referring to the power to declare war vested in the Congress and the Commander in Chief function of the President which gives the President the conduct of the wars which the Congress sees fit to declare.

But as we well know the US Congress has not declared war at any time since 1945. Why ? Because under the Charter of the United Nations, a treaty which the United States signed and ratified, and which therefore constitutes "the supreme law of the land" wars are unlawful except in the circumstances specified in the Charter. No state likes to proclaim publicly that it is acting in breach of the UN Charter, although the Bush Administration has come closer to so doing than any other post-war President.

As every schoolboy now knows, the Bush Administration invaded both Afghanistan and Iraq without any declaration of war. At the same time, the Administration determined to seek to evade the responsibilities of belligerents to treat captives humanely.

While Blumenthal is not the most disinterested observer of the misdeeds of the Bush (Mal)Administration, Cheney is undoubtedly the "loathsome spotted reptile-in-chief", the Beelzebub, to Karl Rove's Screwtape and Bart's Wormwood.

Although it is more likely that the Executive Order was drafted by someone of the ilk of David Addington, it is so badly drafted and so ineffective to achieve its stated purpose that it might well have been dear Bart's very own workproduct.

Sooner or later, the Courts are going to have to grasp the nettles they have sought to avoid. They have tried broad hints - saying that certain thorny points need not be decided in a particular case. The Administration has not taken such hints leaving the Courts with no option but to decide - but still incrementally and with still more hints of what lies over the horizon.

Why else was AG Mukaskey at that refuge for soundrels while out of office in Neocon Administrations, otherwise known as the American Enterprise Institute on 21st July 2001 begging Congress to legislate retroactively to put right what the authors of the Executive Order, (whether Beelzebub himself, Screwtape or some other more minor tempters) messed up?

Because while the AG may be a natural conservative, he, at least, has been around for long enough to read the writing on the wall, even if Neocon Bart hasn't.

"The power of the US military to detain prisoners or war is implied in Articles i and II of the Constitution and is not derived from the international law."

I think there, our pet "loathsome spotted reptile" is referring to the power to declare war vested in the Congress and the Commander in Chief function of the President which gives the President the conduct of the wars which the Congress sees fit to declare.

Actually, the Article I provision to which I refer grants Congress the power to set rules for captures and thus assumes the power to capture prisoners. Thus, your other speculation is in error.

[dilan]: First, a non-self-executing declaration just means that nobody can sue or prosecute something directly under the treaty. It doesn't mean that the treaty is not part of US law. In other words, self-execution is an issue of remedy, not right. (For instance, a violation of ICCPR would still be a proper ground for diplomatic protest, and the US governemnt could not contend in response to that protest that it was not bound by the ICCPR.)

["Bart"]: That is a distinction without a difference. One cannot have a right without a corresponding remedy.

As Dilan pointed out (but as you ignore or simply just don't understand, "Bart"), the issue is not as to some remedy or no remedy, but rather, which remedies are available.

But I assume, taking your view here into account, that you're up in arms against efforts by some Rethuglicans to strip certain types of cases from court jurisdiction, because to do so is to render the rights in question (e.g., religious freedom complaints) meaningless.... Right? Right???

Dilan or Mourad, or Gabor Roma for that matter, some clarification, please: Does what you are saying mean that the self-executing reservations do not affect whether the U.S. is bound by ICCPR Article 9, clause 4, which is essentially the writ of habeas corpus? If so, why would the location make a difference in the Boumediene decision (Kennedy spent a lot of time talking about Guantanamo specifically)?

Does this (hope against hope) mean the decision applies to the network of prisons in Afghanistan?

Bart, As you well know from a previous thread, the constitutional provision to which you refer vesting in the Congress the power to make rules for the Admiralty jurisdiction ("prizes and captures")refers to VESSELS not PEOPLE !

I'll leave it to others more expert that me to give you a precise view of the way SCOTUS might jump.

My read of Boumediene was that the majority decided that the common law remedy of habeas corpus could be adapted to provide a remedy where the Court was satisfied that one was needed. Therefore, they were ruling on the specific case of Boumediene where they felt one was needed - and which by analogy will apply to all GITMO cases.

SCOTUS has not decided about prisons in Afghanistan because there is no case before the Court and the scope of the remedy is not to be defined in a factual vacuum.

For what it is worth, the UK Courts have decided that the right to apply for judicial review and human rights conventions (in our case the ECHR) apply to all cases where detainees are in the physical custody of our troops.

However, where the UN Security Council has by resolution decreed that there is a civil emergency justifying (humane) internment by UK Forces for the duration of the emergency where persons present a serious threat to peace and stability (that subject to 6 monthly review), that has been held by the UK Courts to oust the remedy of habeas corpus and justify military internment even in the case of persons holding UK citizenship - all other human rights guarantees remaining intact.

However, the USA disdains seeking UN authority for its goings-on, so some troops in Afghanistan form part of ISAF - others do not.

Bart, As you well know from a previous thread, the constitutional provision to which you refer vesting in the Congress the power to make rules for the Admiralty jurisdiction ("prizes and captures")refers to VESSELS not PEOPLE !

Interesting that you have adopted the truncated view of our judicial conservatives on the scope of this provision, which they use to make the argument that Article I provides no power to Congress to set rules for prisoners. However, I cannot justify such a limited reading based on the text, which can apply to both vessels and people.

To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

The problem I have textually with the truncated view which you have adopted is that the final clause refers to captures on both land and water. That implies that he term applies to more than water borne vessels.

"Interesting that you have adopted the truncated view of our judicial conservatives on the scope of this provision, which they use to make the argument that Article I provides no power to Congress to set rules for prisoners. However, I cannot justify such a limited reading based on the text, which can apply to both vessels and people. The problem I have textually with the truncated view which you have adopted is that the final clause refers to captures on both land and water. That implies that he term applies to more than water borne vessels.",

My dear Wormwood, did you not do any history of the Admiralty jurisdiction of US District Courts at Florida State University? I suppose you have not had much opportunity to do any Admiralty work from your DUI practice in Colorado, given how far you are from the seaside.

My reading of the meaning of the words of the US Constitution granting to the Congress has nothing at all to do with conservatism but a great deal to do with how your Founding Fathers redistributed the Prerogative Powers of the English Crown among the institutions of your Republic.

If you care to look again at the text of the Constitution you will see that a number of words are terms of art:

"To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.

A "Letter of Marque and Reprisal" was a warrant or commission by or on behalf of the Crown authorising a private person to raid and capture enemy shipping and goods.

Recipients of letters of marque were known as "privateers" - Sir Francis Drake was issued with his Letters of Marque by Elizabeth I.

But Elizabeth I and her successors were nothing if not interested in raising revenue. The Crown was a shareholder in the proceeds of every Capture (of a vessel or goods). These had to be brought into ports and sold under the superintendence of the Courts of the Lord High Admiral (the Admiralty jurisdiction) sitting as a Prize Court.

The same system also existed for the Royal Navy. Captures or Prizes were brought into port and adjudicated by the Admiralty Court. The vessel would be "apprized" as to its worth and utility and either be bought in and added to the fleet, or sold at auction, likewise any goods, and a percentage of the proceeds distributed among the officers and men. The early records of the Admiralty show that the jurisdiction in prize goes back to 1357.

Most civilised nations gave up the power to issue letters of marque under the Declaration of Paris annexed to the 1856 Treaty of Paris. The USA did not do so and therefore in theory it could issue letters of marque to private contractors - a sort of Blackwater private navy.

It is my understanding that in the USA the Federal District Courts may sit as Prize Courts pursuant to 10 U.S.C. § 7651–7681, so were the Bush Administration to issue Letters of Marque and Reprisal to, say, Blackwater or some of their other cronies, their Captures (of vessels or goods) would have to be brought in for adjudication by the District Court.

However, the officers of any future US Privateers should be careful. Captain William Kidd, aka Robert Kidd, received his commission together with a letter of marque and reprisal against French merchant ships. He sailed with both commissions from Plymouth in May 1696 on board the Adventure Galley. When he sailed into Boston in May 1699 he was jailed on suspicion of piracy. A vessel was sent from England to return him for trial which took place at the Old Bailey in May 1701. Kidd was condemned and found guilty of piracy because he could not produce the commissions to prove that several of the vessels which he had captured, were lawful prizes and he was executed at Wapping on 23rd May 1701.

A copy of the letter of reprisal was discovered 200 years later in the Public Record Office:

William Rex,William the Third, by the grace of God, King of England, Scotland, France and Ireland, defender of the faith, &c. To our trusty and well beloved Capt. Robert Kidd, commander of the same for the time being, Greeting: whereas we are informed, that Capt. Thomas Too, John Ireland, Capt. Thomas Wake, and Capt. William Maze or Mace, and other subjects, natives or inhabitants of New-York, and elsewhere, in our plantations in America, have associated themselves with divers others, wicked and ill-disposed persons, and do, against the law of nations, commit many and great piracies, robberies and depredations on the seas upon the parts of America, and in other parts, to the great hindrance and discouragement of trade and navigation, and to the great danger and hurt of our loving subjects, our allies, and all others, navigating the seas upon their lawful occasions. Now know ye, that we being desirous to prevent the aforesaid mischiefs, and as much as in us lies, to bring the said pirates, free-booters and sea-rovers to justice, have thought fit, and do hereby give and grant to the said Robert Kidd, (to whom our commissioners for exercising the office of Lord High Admiral of England, have granted a commission as a private man-of-war, bearing date the 11th day of December, 1695,) and unto the commander of the said ship for the time being, and unto the officers, mariners, and others which shall be under your command, full power and authority to apprehend, seize, and take into your custody as well the said Capt. Thomas Too, John Ireland, Capt. Thomas Wake and Capt. Wm. Maze or Mace, as all such pirates, free-booters, and sea-rovers, being either our subjects, or of other nations associated with them, which you shall meet with upon the seas or coasts, with all their ships and vessels, and all such merchandizes, money, goods, and wares as shall be found on board, or with them, in case they shall willingly yield themselves; but if they will not yield without fighting, then you are by force to compel them to yield. And we also require you to bring, or cause to be brought, such pirates, free-booters, or sea-rovers, as you shall seize, to a legal trial, to the end they may be proceeded against according to the law in such cases. And we do hereby command all our officers, ministers, and other our loving subjetcs whatsoever, to be aiding and assisting to you in the premises. And we do hereby enjoin you to keep an exact journal of your proceedings in execution of the premises, and set down the names of such pirates, and of their officers and company, and the names of such ships and vessels as you shall by virtue of these presents take and seize, and the quantities of arms, ammunition, provision, and lading of such ships, and the true value of the same, as near as you can judge. And we do hereby strictly charge and command you, as you will answer the contrary at your peril, that you do not, in any manner, offend or molest our friends or allies, their ships or subjects, by colour or pretence of these presents, or the authority thereby granted. In witness whereof, we have caused our great seal of England to be affixed to these presents. Given at our court in Kensington, the 26th day of January, 1695, in the 7th year of our reign.

So you see Bart my dear child, before pontificating on the meaning of terms of art to grown-ups, you should do a modicum of elementary research. Nothing set out above is not freely available on the internet.

That is surely not to much to ask of our own pet 'loathsome spotted reptile'.

Thank you for the interesting exposition on admiralty law. However, I never argued that the term captures in Article I did not apply to waterborne vessels. I agree with your argument so far as it goes.

The point I made which you neglected to address is that the Article I grants Congress the power to "make rules concerning captures on land and water."

Is there some British law which would indicate that a capture on land involved something other than soldiers and their property?

Bart - are you a nincompoop or just deliberately being obtuse as a form of abuse?

"Capture" is a term of art and a noun not a verb.

It means a vessel and/or goods either taken by a privateer under letters of marque or by a naval vessel and brought into the Admiralty Court for appraisal and either purchase by the Admiralty or sale by auction.

Do loathsome spotted reptiles not read their Hornblower in which prize money is often under discussion?

That is a distinction without a difference. One cannot have a right without a corresponding remedy.

Bart, it happens all the time. Ever hear of qualified immunity? That's what happens when someone violates your constitutional or statutory right and you aren't allowed to sue.

Similarly, a non-self-executing treaty creates or recognizes a right which is enforceable through diplomatic protest or through the mechanism provided in the treaty if there is one (UN, International Court of Justice, etc.) but is not enforceable by means of a lawsuit or prosecution.

Bart, you really shouldn't opine on international human rights law. You have no background in this stuff.

What is stating that a treaty in unenforceable as law if not an expression of an intent to disregard it?

Because by ratifying the treaty, we have promised the international community we would abide by it. Thus, the non-self-executing reservation cannot mean that we really didn't mean our promise and in fact intend to violate the treaty.

Rather, you need a clear statement from Congress at the time it passes the law alleged to be in violation of it that this is what Congress intends to do.

1) The Senate ratified a treaty with the express reservations that the treaty was not self executing and did not create a cause of action in court; 2) Subsequently, the Congress enacted statutes contrary to one or more provisions in that treaty (like the DTA and MCA which barred the habeas corpus style hearing for POWs allegedly required by Article 9 of the ICCPR); and 3) A court held the treaty was still enforceable as law under the Charming Betsy principle.

That's not the way it works, Bart. Rather, the statute is found to be ambiguous and construed to avoid a violation of international law. Happens all the time, and rather than me doing your research for you, why don't you consult a treatise on international law or even the annotations to the Restatement?

Dilan or Mourad, or Gabor Roma for that matter, some clarification, please: Does what you are saying mean that the self-executing reservations do not affect whether the U.S. is bound by ICCPR Article 9, clause 4, which is essentially the writ of habeas corpus? If so, why would the location make a difference in the Boumediene decision (Kennedy spent a lot of time talking about Guantanamo specifically)?

The US is bound by the ICCPR including Article 9. However, since the ICCPR is not self-executing, a habeas petitioner cannot bring a petition directly under its terms, but must either bring a petition under the habeas statute (Rasul) or under the Constitution (Boumediene). And the Supreme Court has held that there are territorial limitations on these rights.

Thank you for the interesting exposition on admiralty law. However, I never argued that the term captures in Article I did not apply to waterborne vessels. I agree with your argument so far as it goes.

The point I made which you neglected to address is that the Article I grants Congress the power to "make rules concerning captures on land and water."

Is there some British law which would indicate that a capture on land involved something other than soldiers and their property?

mourad said...

Bart - are you a nincompoop or just deliberately being obtuse as a form of abuse?

"Capture" is a term of art and a noun not a verb.

It means a vessel and/or goods either taken by a privateer under letters of marque or by a naval vessel and brought into the Admiralty Court for appraisal and either purchase by the Admiralty or sale by auction.

Your tap dancing around my point is becoming boring.

The term capture when standing alone can be a term of art for a captured naval vessel.

HOWEVER, the constitutional phrase "captures on land" cannot refer to water borne vessels if the words have any meaning. Rather, in the context of war, the phrase would appear to refer to soldiers and their property on land.

I invited you to provide contrary British precedent that used the phrase "captures on land" to refer to something else than soliders and their property on land or to graciously concede the point.

As is your wont, you ignored the entire inconvenient issue and engaged in your usual name calling. I'll take that as a concession by silence of the point.

BD: That is a distinction without a difference. One cannot have a right without a corresponding remedy.

Bart, it happens all the time. Ever hear of qualified immunity? That's what happens when someone violates your constitutional or statutory right and you aren't allowed to sue.

Yes, I have used that defense while working for the State of Florida. However, in such cases, there are generally the alternative remedies of injunction and perhaps money damages from the state depending upon the facts of the case. Moreover, qualified immunity is not an absolute shield and can be pierced to provide yet another remedy.

In the situation we are discussing, there is NO REMEDY at all, thus your comparison is inapt.

Similarly, a non-self-executing treaty creates or recognizes a right which is enforceable through diplomatic protest or through the mechanism provided in the treaty if there is one (UN, International Court of Justice, etc.) but is not enforceable by means of a lawsuit or prosecution.

Are you really trying to argue that a diplomatic protest constitutes an individual legal remedy? The aggrieved individual can also protest in a letter to the allegedly violating government to the same effect and that is usually not considered to be a legal remedy.

The source of the diplomatic protest, whether it be a government or some UN bureaucracy, does not transform a non remedy into a remedy.

BD: What is stating that a treaty in unenforceable as law if not an expression of an intent to disregard it?

Bart, you really shouldn't opine on international human rights law. You have no background in this stuff.

Because by ratifying the treaty, we have promised the international community we would abide by it. Thus, the non-self-executing reservation cannot mean that we really didn't mean our promise and in fact intend to violate the treaty.

You are correct. I probably would not do well in human rights law given my low threshold for self delusion and fantasy.

If you actually believe that government promises that have no force of law amount to more than the figurative peppercorn consideration in contract law, then we are unlikely to come to a meeting of the minds on this issue. I do not play pretend very well.

Dilan: Again, there's 200 years of caselaw on this. You might like the law to be otherwise, but you need to accept that sometimes the law isn't what Bart DePalma thinks it should be.

BD: Then you will have no trouble providing me just one case on point where:

1) The Senate ratified a treaty with the express reservations that the treaty was not self executing and did not create a cause of action in court;

2) Subsequently, the Congress enacted statutes contrary to one or more provisions in that treaty (like the DTA and MCA which barred the habeas corpus style hearing for POWs allegedly required by Article 9 of the ICCPR); and

3) A court held the treaty was still enforceable as law under the Charming Betsy principle.

Just one out of 200 years.

Dilan: That's not the way it works, Bart. Rather, the statute is found to be ambiguous and construed to avoid a violation of international law. Happens all the time, and rather than me doing your research for you, why don't you consult a treatise on international law or even the annotations to the Restatement?

Why? Does it have the single on point citation in over 200 years of case law that you claimed existed and I requested? "It happens all the time" is not legal authority.

In any case, there is nothing ambiguous about the Senate's reservations or the provisions of the DTA and the MCA expressly forbidding the courts from exercising the habeas corpus jurisdiction over POWs that the ICCPR allegedly requires. Thus, a court would have to completely ignore Congress express stated intent to arrive at the ruling you seek.

Even the Boumediene Five did not claim that Congress was being vague in the MCA when it told the Court in no uncertain terms that is did not have habeas corpus jurisdiction over these prisoners. Rather, the Five simply invented a new constitutional "right" out of whole cloth to arrogate the power to conduct combatant status hearings.

Yes, I have used that defense while working for the State of Florida. However, in such cases, there are generally the alternative remedies of injunction and perhaps money damages from the state depending upon the facts of the case. Moreover, qualified immunity is not an absolute shield and can be pierced to provide yet another remedy.

If there is no clearly established right, you can't sue for damages. It can't be pierced. Further, with respect to injunctive relief, you need an actual or threatened future injury under Lyons.

Thus, if the police violate your constitutional rights, are not likely to do it again, and do not prosecute you, you have no remedy unless the right is clearly established.

Yet under Saucier v. Katz, you still have the right.

So yes, qualified immunity is a great example of rights that lack remedies.

Are you really trying to argue that a diplomatic protest constitutes an individual legal remedy?

You inserted the word "individual", which I never used. Diplomatic protest certainly is a remedy, and is discussed as one at length in international law treatises. Again, you should learn about this very interesting field of law.

If you actually believe that government promises that have no force of law amount to more than the figurative peppercorn consideration in contract law, then we are unlikely to come to a meeting of the minds on this issue. I do not play pretend very well.

Bart, you can argue that international law (outside of self-executing treaties) shouldn't exist, but you can't argue it doesn't exist. Our courts respect it, it is incorporated into domestic law and has been for 200 years, and the courts (including judges you like, like Scalia) believe that if they willy-nilly disregard this country's international obligations, it would actually harm the work that is done by the political branches.

Indeed, Scalia has a relatively famous statement defending the application of the Charming Betsy doctrine on exactly this ground.

So, what you think is nonexistent has pull in our law. You can articulate contentions as to why it shouldn't, but that doesn't change the underlying reality that even the most conservative judges think that US law should not be interpreted to bring ourselves into violation of our international obligations unless it has to be.

In any case, there is nothing ambiguous about the Senate's reservations or the provisions of the DTA and the MCA expressly forbidding the courts from exercising the habeas corpus jurisdiction over POWs that the ICCPR allegedly requires.

I don't actually think the ICCPR requires a habeas hearing. It requires a fair tribunal to determine the legality of detention. Habeas is one way to do that, but there are others.

The problem with your position, however, is that the DTA and the MCA are unconstitutional to the extent that they restrict the habeas rights of prisoners at Guantanamo. And for that reason, you wouldn't need to reach a Charming Betsy analysis. As for prisoners at other sites, it could very well be the case that a Combatant Status Review Tribunal with DC Circuit review meets the requirements of the ICCPR; it could also be the case that the terms of the statute are so unambiguous that even under a Charming Betsy analysis they would stand. I don't know the answer to this.

I am simply telling you that your confidence that by making a non-self-execution reservation, Congress has rendered the ICCPR inoperative in this analysis is wrong.

[to Mourad]: I invited you to provide contrary British precedent that used the phrase "captures on land" to refer to something else than soliders and their property on land or to graciously concede the point.

Mourad has pointed to the relevant law that indicates that captures refers to vessels and goods brought to admiralty courts (or prize courts). I guess you don't dispute that the law means this.

Now it is up to you to produce evidence that some court -- any court -- has come to the conclusion that "captures" as used also refers to the taking of prisoners (as a verb form in this sense but clearly used in the noun form for naval "captures") or even of the prisoners themselves -- if you accede that it is the noun form of the word that is being used.

This is your claim. The burden of proof is on you if you want others to adopt your interpretation. Please provide some cites to back up your claim.

I would only note that I am not relying solely upon the reservation holding that the treaty in not self executing, but also the reservation that it may not be used as a cause of action in court.

That's the same reservation, stated differently. "Not self executing" and "doesn't create a cause of action" mean the same thing.

So long as we agree that prisoners of war may not use the ICCPR to challenge their detentions in US courts, then I believe that we have a meeting of the minds.

We do, as long as we define "use" narrowly. The POW's can't bring a claim directly under the ICCPR. But that doesn't mean that if some claim is brought under another legal theory, their lawyers can't cite to the ICCPR or argue that whatever law is at issue should be construed consistent with the US' obligations under the treaty.

We will have to agree to disagree as to whether a foreign diplomatic protest is a meaningful remedy to a detainee at Gitmo.

Actually, Bart, there are a number of former prisoners, such as Mr. Hicks, who are free precisely because of diplomatic protest.

I will say this, however. I think you are right about the meaning of "captures" in Article I.

BD: I would only note that I am not relying solely upon the reservation holding that the treaty in not self executing, but also the reservation that it may not be used as a cause of action in court.

That's the same reservation, stated differently. "Not self executing" and "doesn't create a cause of action" mean the same thing.

I agree. However, the repetition undermines your attempts to claim that Congress did not make their intent clear.

BD: So long as we agree that prisoners of war may not use the ICCPR to challenge their detentions in US courts, then I believe that we have a meeting of the minds.

We do, as long as we define "use" narrowly. The POW's can't bring a claim directly under the ICCPR. But that doesn't mean that if some claim is brought under another legal theory, their lawyers can't cite to the ICCPR or argue that whatever law is at issue should be construed consistent with the US' obligations under the treaty.

:::chuckle:::

Clever. I can see why you enjoy the creative art of human rights law.

Of course, the court's first question should be: "If Congress ratified the ICCPR with the express reservation that it would not create a cause of action before this Court, why exactly should I allow your client to create just such a cause of action under the vehicle of this other law?"

BD: We will have to agree to disagree as to whether a foreign diplomatic protest is a meaningful remedy to a detainee at Gitmo.

Actually, Bart, there are a number of former prisoners, such as Mr. Hicks, who are free precisely because of diplomatic protest.

We traded Hicks for support in the war. Diplomatic protests arising from declining to enforce treaties like the ICCPR had nothing to do with it. If Hicks was French, we would have blown off the French protest because the French have been actively obstructing our war effort.

I will say this, however. I think you are right about the meaning of "captures" in Article I.

Given his other positions, I was rather surprised that Mourad adopted that very truncated conservative view. I am hardly a living constitutionalist or a fervent supporter of congressional war powers by any stretch of the imagination, but I was taken aback when I read that view for the first time in Heritage's treatise on the Constitution. The term "captures on land" simply does not justify the argument that the term captures refers to only naval vessels. Congress has the power to set the rules for POWs.

Of course, the court's first question should be: "If Congress ratified the ICCPR with the express reservation that it would not create a cause of action before this Court, why exactly should I allow your client to create just such a cause of action under the vehicle of this other law?"

Only that's not the way it works. Rather, you have other laws, they can be interpreted in various ways, and one interpretation will ensure that the courts don't place the United States in violation of its treaty obligations.

As I said, even Scalia buys this.

We traded Hicks for support in the war. Diplomatic protests arising from declining to enforce treaties like the ICCPR had nothing to do with it. If Hicks was French, we would have blown off the French protest because the French have been actively obstructing our war effort.

But that's a very different claim (even if we assume its truth) from saying diplomatic protest is no remedy.

Diplomatic protest works when both parties see it as in their interest to make a deal. But that's a lot different from saying it never works.

I should say one other thing. We have responded in various ways to various countries with respect to Guantanamo prisoners, and it hasn't been simply a matter of rewarding countries that supported the Iraq War. If Hicks had been a KSM-like figure, it wouldn't have mattered that he was an Australian citizen. In contrast, we have let out plenty of Yemeni, Saudi, and Pakistani prisoners, among others, in response to diplomatic protests despite our differences with the governments.

Diplomatic protest is complicated and you are right that realpolitik enters into it. But it does work, and more often than you might think.

My interpretation of the words of the clause dealing with Letters of Marque and Captures does not follow either the originalist heresy, nor the conventional 'living constitution' interpretation process.

Neither is permissible where the words have plain meaning. The words in question are terms of art. I assume you know what those are. Therefore you should be able to ascertain their meaning without problem.

If you have a genuine interest in the subject you might try: "An Essay on Privateers, Captures and Recaptures according to the Laws, Treaties and Usages of the Maritime Powers of Europe", by M. De Martens, Counsellor of State to His Britannic Majesty the Elector of Hanover, Ordinary Professor of the Law of Nature and of Nations, and Member of the Juridical Faculty of the University of Gottingen - translated from the French by Thomas Hartwell Horne - 1801 (Reprinted 2004 by The Lawbook Exchange, Ltd. ISBN 1-58477-401-0. Cloth.) Martens [1756-1821] was a German diplomat and jurist who published several important treatises on international law.

Barnes & Noble have a used copy if you want it - a snip at US$111 - but I doubt it would be of much relevance to your DWI practice. A good law library in your area might well have a copy.

From the historical point of view, I would add something further. Try common sense. We are talking about terms developed during the days of sail. A privateer or indeed a regular naval vessel would go after vessels, because the fleets of all naval powers were always short of vessels. Once taken, a prize crew would be put on board to sail the vessel back to the nearest port with a Vice Admiral and therefore a court which could take the vessel into the fleet. Both categories of vessel would also send out shore parties to take possession of moored or beached vessels and stores and other valuables. What they would not do is take prisoners because the critical operational issue for a sailing vessel at the time was to have sufficient food and water to make the journeys of the mission and it was all too often touch and go. There is absolutely no way that either a Royal Naval vessel or a Privateer would take on board a load of useless military - additional mouths to feed and consumption of precious water. If there were soldiers or civilians aboard a captured vessel they would be put ashore, or into the boats (or in the case of some privateers, who were little more than pirates, simply slung over the side and told to swim for it). It was not uncommon to take trained seamen into the service, the Royal Navy of the time had many sailors who started life as Frenchmen, Spaniards, or even Americans - and trained sailors were also in short supply.

I suggest you give up on this clause as a source of constitutional authority for executive detention of people rather than things.

Contrary to what seems to be the view of some others, I find the opinions of the 4th Circuit do no honour to the US judicial system.

In part, my objection is procedural: (1) Habeas Corpus is supposed to be a speedy remedy and the procedure in this case- determinations, appeals, reconsiderations en banc, remands for further fact finding, seem to me to be to be more akin to those of the fictional case of Jarndyce -v- Jarndyce excoriated by Dickens in "Bleak House" than to the legitimate expectations of public justice in the 21st Century. Mr Al Marri has been in military detention for 5 years now. It is an affront to justice that the Courts have not yet been able to determine with finality whether his detention is lawful.

(2) Were this matter proceeding in England, the case would today have been entitled: "The Queen [US = The People] on the relation of Al-Marri -v- The Secretary of State for the Defence Department" thus emphasising that these are "public law" proceedings. It is in the public interest that officials are accountable and can be required to demonstrate that the detention of any person is lawful. These proceedings are not simply a 'lis inter partes' but the state inquiring in the interests of justice into the legality of executive action with The People as the true party before the Court seeking a proper explanation from officials as to why the relator is detained.

The judicial role in such procedure is essentially inquisitorial, because the respondent officials are likely to hold all the evidential cards. Therefore the Judge is entitled to expect the utmost candour from the Government and the Rapp Declaration was certainly not candid.

In part, my concerns arise from what I might describe as "the Liversidge tests" from the celebrated dissent of Lord Atkin in Liversidge –v- Anderson [1942] A.C. 206 now recognised as a correct statement of the English law - also a case about executive detention in wartime. The following are extracts from Lord Atkin's speech.

"The matter is one of great importance both because the power to make orders is necessary for the defence of the realm; and because the liberty of the subject is seriously infringed: for the order does not purport to be made for the commission of an offence against the Criminal Law: it is made by an executive Minister and not by any kind of judicial officer: it is not made after any inquiry as to facts to which the subject is party: it cannot be reversed on any appeal: and there is no limit to the period for which the detention may last.

The material words of the regulation are as follows: "If the Secretary of State has reasonable cause to believe " any person to be of hostile origin or associations and that by " reason thereof it is necessary to exercise control over him he may " make an order against that person directing that he be detained."

They are simple words, and as it appears to me obviously give only a conditional authority to the Minister to detain any person without trial: the condition being that he has reasonable cause for the belief which leads to the detention order. The meaning, however, which for the first time was adopted by the Court of Appeal in the Greene case and appears to have found favour with some of your Lordships, is that there is no condition: for the words "if the Secretary of State has reasonable cause" merely mean: if the Secretary of State thinks that he has reasonable cause. The result is that the only implied condition is that the Secretary of State acts in good faith. If he does that, and who could dispute it or disputing it prove the opposite, the Minister has been given complete discretion whether he should detain a subject or not.

It is an absolute power which so far as I know has never been given before to the executive: and I shall not apologise for taking some time to demonstrate that no such power is in fact given to the Minister by the words in question."

[Recognise the similarities with the issues in Al-Marri ?]

"It is surely incapable of dispute that the words "If A has X" constitute a condition the essence of which is the existence of X and the having of it by A. If it is a condition to a right (including a power) granted to A, whenever the right comes into dispute the tribunal, whatever it may be, that is charged with determining the dispute must ascertain whether the. condition is fulfilled. In some cases the issue is one of fact: in others of both fact and law. But in all cases the words indicate an existing something the having of which can be ascertained.

And the words do not mean and cannot mean "if A thinks that he has." "If A has a broken ankle" does not mean and cannot mean "if A thinks that he has a broken "ankle": "if A has a right of way" does not mean and cannot mean "if A thinks that he has a right of way." "Reasonable cause"for an action or a belief is just as much a positive fact capable of determination by a third party as is a broken ankle or a legal right.

If its meaning is the subject of dispute as to legal rights then ordinarily the reasonableness of the cause, and even the existence of any cause, is in our law to be determined by the Judge and not by the tribunal of fact if the functions deciding law and fact are divided. Thus having established as I hope that the plain and natural meaning of the words "having reasonable cause" imports the existence of a fact or state of facts and not the mere belief by the person challenged that the fact or state of facts existed, I proceed to show that this meaning of the words has been accepted in innumerable legal decisions for many generations: that "reasonable cause" for a belief, when the subject of legal dispute, has been always treated as an objective fact to be proved by one or other party and to be determined by the appropriate tribunal."

I view with apprehension the attitude of judges who on a mere question of construction, when face to face with claims involving the liberty of the subject, show themselves more executive-minded than the executive. Their function is to give words their natural meaning, not perhaps in war time leaning towards liberty, but following the dictum of Pollock C.B. in Bowditch v. Balchin (1850, 5 Ex. 378), cited with approval by my noble and learned friend Lord Wright in Barnard v. Gorman (1941, 3 All E.R., at p. 55), " in a case in which the liberty of the subject is concerned, we " cannot go beyond the natural construction of the Statute." In this country amidst the clash of arms the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecters of persons and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law. In this case I have listened to arguments whichmight have been addressed acceptably to the Court of Kings Bench in the time of Charles I.

The Opinion of Judge Motz in which Judges Michael, King and Gregory joined seems to me to meet the Liversidge tests of not being more executive-minded than the executive and giving words their natural statutory meaning. All the others, seem to me to fail.

I suggest you give up on this clause as a source of constitutional authority for executive detention of people rather than things.

"To dream the impossible dream...."

As I pointed out above (but which "Bart" ignores), you have provided your authority and cites. "Bart" has indicated that he thinks that you need to provide a court case ("contrary British precedent") that has held that "the phrase 'captures on land' refer[s] to something else than soliders and their property on land".

But "Bart" hasn't done his homework, which is to provide anything past his own bare and unsupported assertions that "the phrase 'captures on land' [does] refer to [...] soliders and their property on land". He has seemingly agreed that your usage of "captures" is supported by the text and cites you provide. Now is it his burden of proof to show that in fact it also encompasses other than what you have shown (and he has agreed) it does. He will not (because he can't), but just as he claims that the U.S. Supreme Court has acted unconstitutionally, he will maintain that he is right in this circumstance as well. But that has nothing to do with the state of the law. He is the Man of La Mancha, he 'knows' he's on a noble quest, and he will win his Dulcinea ... which he will steadfastly assert is not a pig.

BTW, thanks for your illuminating comments here. Your perspective as a foreign observer and lawyer is refreshing and your knowledge formidable. My hat's off to you.

The material words of the regulation are as follows: "If the Secretary of State has reasonable cause to believe "any person to be of hostile origin or associations" and that by "reason thereof it is necessary to exercise control over him" he may "make an order against that person directing that he be detained."

They are simple words, and as it appears to me obviously give only a conditional authority to the Minister to detain any person without trial: the condition being that he has reasonable cause for the belief which leads to the detention order. The meaning, however, which for the first time was adopted by the Court of Appeal in the Greene case and appears to have found favour with some of your Lordships, is that there is no condition: for the words "if the Secretary of State has reasonable cause" merely mean: if the Secretary of State thinks that he has reasonable cause. The result is that the only implied condition is that the Secretary of State acts in good faith. If he does that, and who could dispute it or disputing it prove the opposite, the Minister has been given complete discretion whether he should detain a subject or not.

This goes right to the heart of the problem.

To deny habeas and to deny meaningful review of the facts surrounding detention (and not just whether the detention procedures are consonant with a 'law' of dubious legality, much less executive orders) is to leave us with the situation that Lord Atkin describes.

Abstract: The Congress shall have power to . . . To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water. US Const Art I, § 8, cl 11.

Although the Capture Clause may seem obscure today, the power it embodies was crucially important to the early republic. General Washington declared, even during the Revolutionary War, that a centralized and standardized system for the handling of prizes was vital to the war effort. The first court established by the fledging federal government was the federal appellate court of prize. This court heard over a hundred and eighteen cases before it was dissolved by Article III of the Constitution.

The federal government, first under the Articles of Confederation and then under the Constitution, was responsible for prescribing the rules under which enemy ships and prisoners could be taken. The value of captured ships was the chief means by which the early navy and privateer system was financed. However, the early law of capture also concerned captured persons, who could sometimes be redeemed or ransomed for head money. Later scholars have correctly concluded the capture of property was more important to the Framers of the Constitution. However, they have also assumed that the Capture Clause did not cover people. This is not the case.

This paper will show that the received wisdom that the Capture Clause covers only property is based on a faulty and possibly disingenuous statement dating from 1833. This paper will also show that the received wisdom is inconsistent with the era's admiralty law and with Congressional practice. The Framers made prescribing rules concerning captures on land and water an enumerated power of Congress. This power covered enemy persons as well as property.

I have read the paper of Mr Simowitz which you have prayed in aid. Mr Simowitz is a 2006 alumnus of the University of Chicago now in private practice, hardly an "authority" even by the relaxed standards of today (the former rule here was that you had to be dead before academic work could be cited). Further the paper is marked "preliminary - not to be cited" which suggests it is a work in progress.

Mr Simowitz dismisses Justice Storey’s contrary opinion of 1833 that Captures are about property (I would have though Justice Storey to be of more persuasive authority than Mr Simowitz) and (more understandably) that of Professor John Yoo (whose views I would not regard as authority for the time of day).

Mr Simowitz acknowledges that “Capture” is a term of art – the very point I have made to you.

In my view Mr Simowitz's work in progress confuses prisoners of war with that of hostages under letters of reprisal.

Some early letters of reprisal (not strictly speaking letters of marque) were a primitive form of international debt collecting. Suppose merchants from Holland have come to England for the wool trade and defaulted on their obligations. The aggrieved merchants could petition the Crown for letters of reprisal which would entitle them to seize goods and take hostages until the Dutch authorities honoured the debts of their citizens.

Mr Simowitz acknowledges that most of the records of the Federal Prize Court are no longer extant and he does not appear to have done much by way of researching the records of the UK and Colonial Courts of Admiralty which are the most important extant records since at that time Britannia really did rule the waves.

Mr Simowitz points out that the two principal authorities of the time avalable in the USA were Vattel’s “Law of Nations” – an authority you derided on another thread when I cited it to you for the proposition that a state of war may only exist between sovereign states – and Martens – the very authority I cited to you earlier on this thread.

Mr Simowitz cites Vattel as authority for the proposition that persons may be detained “with a view to obtain from their sovereign a just satisfaction, as the price of their liberty.” – precisely the “hostages as a means of debt collection” situation described above.

Young Mr Simowitz describes Marten as “the dominant authority on the law of capture in 1795 with the publication of his “Essay on Privateers, Captures, and Particularly on Recaptures”—a position reinforced in 1801 when Thomas Hartwell Horne translated the treatise into English. The work is remarkable for its clarity, brevity, comprehensiveness, and exhaustive footnoting to the statutes, commentators, and decision of nearly every European power.” - which, incidentally, is why I cited it to you as the preferred authority on the law of Captures.

Again, Marten deals with the taking of hostages for ransom, which is certainly part of the law of Capture and considers the classification of such: Mr Simowith quotes this passage:-

“When a privateer has made any prisoners of war, who are afterwards ransomed, the profit of them is in like manner bestowed on him. In Holland he is sometimes even reimbursed the sums expended in supporting the prisoners till they are delivered to the courts of admiralty. In England, privateers are permitted to make use of them in their ships. If the subjects of a foreign [sovereign] have been taken as hostages to secure the ransom, and are found on board the prize, they are free in Holland, but are obliged to pay the third part of the sum secured to the captor. In France they are considered as free without any recompense. It is a consequence of the ransoms being declared void; the same point ought therefore to take place in England.”

Again, Martens is really discussing the issue of ‘hostages for debt collection/ransom’, not the issue of prisoners of war.

What Mr Simonwitz does illustrate is that at the time of the framing of the Constitution, there was considerable confusion about the rather arcane subject of Capture, the condition of aliens (friendly or enemy) and the regulation of the treatment of prisoners of war.

That is unsurprising - foreign affairs were a matter for London in colonial times and the Framers were in uncharted waters.

I think it was clear then, as it ought to be now:-

(i) Firstly, that wars can only exist between sovereign states and therefore that the so-called “war on terror” is a legal nonsense.

(ii) Secondly, that the regulation of hostilities, including war, that of prisoners of war, of letters of marque and reprisal, of capture and of ransom (all matters relating to hostilities of one sort or another between sovereigns) were vested in the Congress and not the President – which is utterly consistent with the framers’ intent that most of the prerogative powers of the former sovereign should be vested in the Congress and not the President;

(iii) Thirdly, the so-called “inherent authority of the President as commander in chief” is an authority to execute what the Congress has mandated;

(v) Finally, it is the Congress, not the President, which has the authority over letters of Marque and Reprisal, Captures and over hostages taken pursuant to such commissions.

Letters of Marque and Reprisal and Capture are now dead letters in the international community as I pointed out earlier. I rather think other nations today would be justified as treating privateers as pirates.

The Congress has not issued any recent authority for letters of marque or reprisal to issue so the issue of Captures under non-existent commissions does not arise

As we have discussed on other threads, the AUMF procedure is constitutionally doubtful, but presuming its constitutionality, it does not constitute a blank cheque. Congress must be taken to have intended to require the President to act consistently with treaties the USA has ratified and which are “the supreme law of the land”.

Whether or not such treaties are self-executing so as to create a private right of action in civil proceedings (eg for damages) the canon of statutory interpretation that the legislature is presumed to have legislated consistently with treaty obligations unless that presumption is displaced by clear words on the face of the statute can be invoked in public law proceedings by way of judicial review – eg for ‘habeas corpus’.

Accordingly, the authority of the President to execute the (internationally unlawful – but no matter) invasions of Afghanistan and Iraq did not extend to authority to violate the Geneva Conventions, or the Torture Convention, or the Human Rights Conventions to which the US is a signatory.

In the absence of express words authorising such acts, all subordinate legislation by way of executive orders and the like are liable to be struck down to the extent they are inconsistent with such obligations.

Now re-read the 4th Circuit opinions in Al-Marri and the other detainee cases and you may begin to understand just why the Attorney-General has been begging Congress to legislate to legalise or at least to mitigate the consequences of flagrant Administration illegality.

The whole pattern of the detainee cases has been delay and obfuscation by the Government – it is a disgrace that the judiciary and congress have allowed it to happen.

But then again, during the last 8 years the Maladministration has been placing a lot of ‘loathsome spotted reptiles’ in positions of power. One can only hope that the next Administration will be able to enable the USA to rejoin the community of nations in which executive actions are subject to effective judicial control.

Presumably, as a minor 'loathsome spotted reptile' you will continue to defend the illegalities to the extent you can.

You have now conceded that the term captures covers people and not just vessels, but contend that those people would be hostages and not prisoners of war as we understand the term.

However, you further concede that the drafters of the Constitution may not have properly understood the technical meaning of the term capture since the English usually administered this law.

I think we have come to a meeting of the minds. I do not disagree with these points.

The textual variation on the stand alone term "captures" to "captures on land and sea" would appear to confirm your suspicion that the drafters may not have understood the technical limits of the term capture and instead believed it to mean something more.

Additionally, Justice Marshall's discussion of the subject in Brown v. United States, 12 US (Cranch) 110, 126 (1814), implies this broader understanding of the meaning of the Captures Clause. Brown dealt with captured property, but as was Marshall's practice engaged in a broader discussion of the provision being discussed:

That the declaration of war has only the effect of placing the two nations in a state of hostility, of producing a state of war, of giving those rights which war confers, but not of operating, by its own force, any of those results, such as a transfer of property, which are usually produced by ulterior measures of government, is fairly deducible from the enumeration of powers which accompanies that of declaring war. "Congress shall have power" -- "to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water."

It would be restraining this clause within narrower limits than the words themselves import to say that the power to make rules concerning captures on land and water is to be confined to captures which are exterritorial. If it extends to rules respecting enemy property found within the territory, then we perceive an express grant to Congress of the power in question as an independent substantive power, not included in that of declaring war.

The acts of Congress furnish many instances of an opinion that the declaration of war does not, of itself, authorize proceedings against the persons or property of the enemy found, at the time, within the territory.

War gives an equal right over persons and property, and if its declaration is not considered as prescribing a law respecting the person of an enemy found in our country, neither does it prescribe a law for his property. The act concerning alien enemies, which confers on the President very great discretionary powers respecting their persons, affords a strong implication that he did not possess those powers by virtue of the declaration of war.

The "act for the safekeeping and accommodation of prisoners of war" is of the same character.

In Brown, the Supreme Court grouped "[t]he "act for the safekeeping and accommodation of prisoners of war" with laws enacted pursuant to the Captures Clause for the disposal of captured enemy property.

Justice Story was in the dissent on this case and implied that his dissenting view was law in his treatise on the Constitution to which Professor Yoo cites.

On Justice Story's behalf, Brown did not in fact decide this matter and Justice Marshall's discussion is dicta. However, that dicta did obtain majority support on the Court and is persuasive.

As a matter of textual construction, it would be passing strange for the drafters to grant Congress the power to legislate over captured property, but not over captured persons.

In any case, this loathsome spotted reptile has enjoyed this conversation. I have nothing more to add. You get the last word.

As you will undoubtedly well know, Admiralty law is not common law but a code of its own deriving from sources such as the maritime law of Rhodes, Byzantine and Roman law as well as Islamic law - essentially initially all the Mediterranean nations. Eleanor of Aquitaine as Regent for Richard the Lionheart introduced the Rolls of Oléron which she had promugated in 1160 to England. References to the Rolls are to be found in the Black Book of the Admiralty, an English compilation of admiralty law created over the course of several English monarchs' reigns which was started during the reign of Edward III. Admiralty law is not common law but civil law - and incidentally still in print.

I doubt that some of the Framers of the Constitution were not familiar with Admiralty law since both Alexander Hamilton and John Adams were Admiralty lawyers. Therefore, I think that there were some people around at the time of framing the Constitution who knew all about Admiralty law, privateers, letters of marque and the like. The problem was likely to have been that the Admiralty jurisdiction was highly unpopular beause it had been used to enforce the Stamp Acts. Jefferson put something of a spike in the system by writing to Madison in 1787 suggesting "trial by jury in all matters of fact triable by the laws of the land" which resulted in the 7th Amendment -which must have made the Federal Prize Court pretty chaotic.

Captures are a consequence of letters of Marque and/or Reprisal.

Where I think there may have been unfamiliarity was in the matter of reprisal and ransom, since the law merchant had moved on apace since Tudor times and was applied in the Admiralty Courts and in Equity.

In the 18th Century it was probably not that necessary for the wool merchants of London to obtain letters of reprisal and arrest a few Flemish Burghers to obtain settlement of their commercial debts and there was certainly no obstacle to a British citizen of the Americas suing in the Courts of England in a commercial cause.

In any event, I note you now agree that these prerogative powers of the sovereign were vested in the congress and not the president and that the Congress has not been issuing commissions for Letters of Marque and/or Reprisal to authorise Captures in modern times.

I agree with Justice Marshall's analysis. They are indeed medieval prerogative powers separate and distinct from, although similar to, the power to declare war and all part of the means of engaging in hostilities with other sovereigns which is why they will have been grouped with the war power.

One can understand why the Framers wanted them vested in the Congress and not the President whom they did not wish to have the powers of poor King George.

The arcane nature of Letters of Marque and Reprisal, Captures etc probably explains why the US did not subscribe to the Treaty of Paris which rendered these medieval instruments a dead letter in Europe.

I can't say that the world would be too happy about Blackwater or some similar private enterprise running a fleet of privateers. Would you ?

See also the Testimony of Professor Douglas Kmiec, then Dean of the Columbus Law School at the Caltholic University of America to the Senate Committee on the Judiciary on 17th April 2002:

"Some have disputed this account of the declare war clause, arguing in support of a congressional pre-condition by reference to Article I, Section 8, Clause 11 which gives Congress the power to “grant Letters of Marque and Reprisal, . . .” This somewhat arcane aspect of constitutional text, however, cannot bear the weight of the claim. Letters of Marque and Reprisal are grants of authority from Congress to private citizens, not the President. Their purpose is to expressly authorize seizure and forfeiture of goods by such citizens in the context of undeclared hostilities. Without such authorization, the citizen could be treated under international law as a pirate. Occasions where one’s citizens undertake hostile activity can often entangle the larger sovereignty, and therefore, it was sensible for Congress to desire to have a regulatory check upon it. Authorizing Congress to moderate or oversee private action, however, says absolutely nothing about the President’s responsibilities under the Constitution."

As you know, Professor Kmiec was Head of the Office of Legal Counsel for both Presidents Reagan and Bush Senior whose opinion must count for rather more on these matters than, I would suggest, the work in progress of Mr Simowitz.

I stand by my position that the Captures provision is about property not people and I think authority is on my side - 600 years or so of it.